The secret move, described briefly in a draft report by the Pentagon’s inspector general, set off no alarms within the Obama administration even though it appears to have sidestepped federal rules and perhaps also the Freedom of Information Act.
An acknowledgement by Adm. William McRaven of his actions was quietly removed from the final version of an inspector general’s report published weeks ago. A spokesman for the admiral declined to comment. The CIA, noting that the bin Laden mission was overseen by then-CIA Director Leon Panetta before he became defense secretary, said that the SEALs were effectively assigned to work temporarily for the CIA, which has presidential authority to conduct covert operations.
“Documents related to the raid were handled in a manner consistent with the fact that the operation was conducted under the direction of the CIA director,” agency spokesman Preston Golson said in an emailed statement. “Records of a CIA operation such as the (bin Laden) raid, which were created during the conduct of the operation by persons acting under the authority of the CIA Director, are CIA records.”
Golson said it is “absolutely false” that records were moved to the CIA to avoid the legal requirements of the Freedom of Information Act.
The records transfer was part of an effort by McRaven to protect the names of the personnel involved in the raid, according to the inspector general’s draft report.
But secretly moving the records allowed the Pentagon to tell The Associated Press that it couldn’t find any documents inside the Defense Department that AP had requested more than two years ago, and could represent a new strategy for the U.S. government to shield even its most sensitive activities from public scrutiny.
“Welcome to the shell game in place of open government,” said Thomas Blanton, director of the National Security Archive, a private research institute at George Washington University. “Guess which shell the records are under. If you guess the right shell, we might show them to you. It’s ridiculous.”
McRaven’s directive sent the only copies of the military’s records about its daring raid to the CIA, which has special authority to prevent the release of “operational files” in ways that can’t effectively be challenged in federal court. The Defense Department can prevent the release of its own military files, too, citing risks to national security. But that can be contested in court, and a judge can compel the Pentagon to turn over non-sensitive portions of records.
Under federal rules, transferring government records from one executive agency to another must be approved in writing by the National Archives and Records Administration. There are limited circumstances when prior approval is not required, such as when the records are moved between two components of the same executive department. The CIA and Special Operations Command are not part of the same department.